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12.10 ADA—Discrimination—Retaliation

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12.10 ADA—RETALIATION

It is unlawful for a person or entity to discriminate against any individual because that individual has opposed any act or practice that he or she reasonably believes to be unlawful under the ADA or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the ADA.

Disability is not an element of a retaliation action under the ADA.

For the plaintiff to establish retaliation in violation of the ADA, the plaintiff must prove the following elements by a preponderance of evidence:

1. the plaintiff [engaged] [was engaging] in conduct protected under the ADA;

2. the plaintiff was subjected to an adverse employment action at the time, or after, the protected conduct occurred;

3. [there was a causal link between the protected activity and the adverse employment action]; and

4. [the plaintiff’s protected activity was a [motivating factor] [sole or exclusive reason] in the adverse employment action.]

If you find that each of the elements on which the plaintiff has the burden of proof has been proved, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant.

Comment

The Ninth Circuit applies the Title VII framework for retaliation claims. Barnett v. U. S. Air, Inc., 228 F.3d 1105, 1121 (9th Cir.2000) (en banc) (adopting test and stating elements), vacated on other grounds, 535 U.S. 391 (2002). See Instruction 10.4A.2 (Civil Rights—Title VII—"Adverse Employment Action" in Disparate Treatment Cases). See also Burlington No. and Santa Fe Ry. v. White, 548 U.S. 53, 68 (under anti-retaliation provision of Title VII, plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might have "dissuaded a reasonable worker from making or supporting a charge of discrimination.") Because the Ninth Circuit has defined causation utilizing the term "causal link," it is set forth as the first option for the element of causation. Because the Title VII framework for retaliation claims has been adopted, however, the committee has provided a second causation option based on "motivating factor" language. See the Introductory Comment to this chapter regarding use of a "motivating factor" test.

Plaintiff’s reasonable belief that the action opposed is unlawful is sufficient to allow a retaliation claim. See Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir.1994) (Title VII claim).

See 29 C.F.R. § 1630.12(a) (1999) (explaining retaliation and coercions); 42 U.S.C. § 12203(a) (defining retaliation).

Because 42 U.S.C. § 12203(a) applies to "any individual," the plaintiff need not prove disability within the meaning of the ADA to sustain a retaliation claim under the ADA.